IN THE CASE OF: 

		BOARD DATE:	    29 November 2012

		DOCKET NUMBER:  AR20120009076 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he was suffering from tremors his drill sergeant interpreted to be weakness.  He claims several months after his discharge he was diagnosed with a seizure disorder and has suffered from this illness for 
40 years.  He states that if an effort had been taken to determine his problem, the discharge would have taken a different path 

3.  The applicant states he can provide medical proof of his disorder if necessary; however, he provides no documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 28 October 1972 and was assigned to Fort Jackson, South Carolina to attend basic combat training.  His record documents no acts of valor or significant achievement and he never advanced above the grade of private/E-1.  

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 January 1973, for two specifications of being absent without leave (AWOL), from 10 to 14 January and 15 to 18 January 1973.  

4.  On 18 January 1973, the applicant underwent a psychiatric evaluation.  The examining psychiatrist determined the applicant had no mental defects sufficient to warrant disposition through medical channels.  He recommended the applicant be administratively separated from the service under the provisions of chapter 13, Army Regulation 635-200.  

5.  The record contains a Standard Form (SF) 88 (Report of Medical Examination) documenting the applicant’s separation medical examination.  It shows all normal clinical evaluations, including in the psychiatric area.  It also shows the examining physician found no medical issues and that the applicant was qualified for separation/retention.  

6.  On 26 January 1973, the unit commander notified the applicant he was initiating action to separate the applicant under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability (apathy).  He cited the applicant’s two periods of AWOL and his refusal to participate in training as the basis for taking the action.  

7.  On 26 January 1973, the applicant consulted with legal counsel and was advised of the basis for and his rights in connection with the contemplated separation action for unfitness.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived his right to consideration of and personal appearance before a board of officers and he elected not submit statements in his own behalf.  

8.  On 30 January 1973, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability-apathy and directed he receive a GD.  On 5 February 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability and was issued a General, Under Honorable Conditions Discharge Certificate.  It further shows he completed 2 months and 5 days of active service. 
9.  There is no evidence of record indicating the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15 year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided for the separation of members for misconduct.  Members separated for misconduct normally received an undesirable discharge.  A general or an honorable discharge could be issued by the separation authority if warranted by the member's overall record of service.

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge to an HD because he suffered from an undiagnosed seizure disorder has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His record includes a psychiatric evaluation and separation medical examination that confirm he suffered from no disqualifying medical or mental condition that warranted his separation processing through medical channels.  

3.  The applicant's record reveals a significant disciplinary history that includes his acceptance of NJP for two separate periods of AWOL while he was still in basic combat training.  His short record of undistinguished service did not support the issuance of an honorable discharge at the time of discharge and it does not support an upgrade now.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an HD.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120009076



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ABCMR Record of Proceedings (cont)                                         AR20120009076



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